Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1887-11-23
DINING DISCHARGED.
A Mere Affidavit Containing no Evidence
Showing Guilt Insufficient.

The Supreme Court. sitting in bank, yes
terday rendered the following decision in
the ex pafte DINING habeas corpus case,
which was argued on Monday. Sections
S11, SD and Sl3 of the Penal Code are as
follows:
Section SILL When an information is laid be-
fore a Magistrate of the commission OF pubic
oifense triable within the county, ne must ex-
anime on oath the informant or prosecutor,
and any witnesses he may produce, ana take
their deposition in writing, and cause them TO
be subscribed by the parties making them.
Section Sl2. The deposition must set 1orin
the facts stated by the prosecutor and his wit
nesses, tending to establish the commission OF
| the offense, and the guilt of the defendant.
Section e13 If the Magistrate is satlshed
therefrom that the offense complained OF has
been committed. and that there is reasonable
ground to believe that the defendant has COM
mitted it, he must issue warrant OF arrest.
Under these provisions Magistrate has
no jurisdiction to issue warrant OF arrest
without some evidence tending to show the
guilt of the party named IN the warrant.
The original information may be Sufficient,
though made only upon information and
belief, if followed by the deposition OF the
complainant, or some other witness stating
facts tending to show the guilt of the party
charged. OF course, where there was some
evidence upon which the Magistrate acted,
we would not interfere. 1t may be also
true that the original information might be
treated as deposition, and in such view, II
it contained positive evidence OF facts tend
ing to show guilt, it might be sufficient as
basis for the issuance of warrant: But
a mere affidavit in the form of an intorma-
ton, containing no evidence and followed
by no deposition stating any fact tending to
show guilt, is insufficient to support war
rant. The liberty of citizen cannot be vi
olated upon the mere expression OF an
opinion under oath that he is guilty of a
crime. (Swart VS.. Kimball, 43 Mich, 443
Blodgett vs. Race, Is Hun, 1872; in re Bal
com, u Neb, 316; ex parte Burford, 3
Cranch. AS; People VS.. Smith, Cal. 81
People VS.. Hebron, SO Mich, 529; ex parte
Hayres, IS Wendell, 6l2; Loden VS.. Phelps,
- Wend., 4G; People VS.. Hamilton. 66
Cal, 59i). Such being the case here, the
petitioner is discharged.
DINING RE-ARREsTED.
The San Francisco Post of last evening
says: Chief Crowley received a dispatch
this afternoon from j. d. Spencer, Clerk of
the Supreme Court, which is now in session
in Sacramento, announcing that an opin-
ion had been filed by the Court ordering
John A. DINING released from custody.
Before the receipt of the dispatch Chief
Crowley and Assistant d. A Kirk believ-
ing that the writ would be granted, sent for
Mrs Sarah Benhayon, and she swore out
new complaint against DINING. The sec
ond complaint directly charges DINING
with the murder of Henry Benhayon on
the 23d ult., and in an affidavit on the back
the mother swears that the murder was
accomplished by the administration of
cyanide of potassium. When Judge Horn
blower convened Court this afternoon,
Prosecuting Attorney Coffey asked for the
dismissal of the former charge of murder,
in compliance with the decision of the
Supreme Court. DINING was then led
back to his quarters in the tanks, and
the new warrant was served upon him"